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France taken to court for refusing to repatriate the children of jihadists

Giuseppe Cacace, AFP |The Al-Hol camp in northeastern Syria

The grandparents of two French children detained with their jihadist mother in Kurdish-held Syria filed a lawsuit at Europe’s top rights court Monday over France’s refusal to repatriate them. FRANCE 24 spoke to a lawyer involved in the case.

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The legal filing put the thorny issue of repatriating the children of suspected European jihadists in Syria back in the news. Marie Dosé, one of the lawyers representing the grandparents, spoke to FRANCE 24 about the case she brought before the European Court of Human Rights (ECHR) in Strasbourg on their behalf.

The case concerns a 4-year-old boy and a 3-year-old girl who are being detained along with their French mother, who is the subject of an arrest warrant issued by a French anti-terrorism judge. For the past three months the three have been held in the Al-Hol camp in northeastern Syria, where they arrived from Baghouz, the last holdout of the Islamic State group in Syria. With a population in excess of 70,000, Al-Hol is overcrowded and teeming with disease, according to NGOs, who have sounded the alarm over conditions at the camp and warned of an impending humanitarian disaster.

The lawsuit contends that France is allowing the children to be exposed to inhumane and degrading treatment in a camp beset by illness and malnutrition, and argues that France is thus in violation of the European Convention on Human Rights, which states that "no one shall be subjected to torture or to inhumane or degrading treatment or punishment". The lawyers are also citing another European rule that ordains "no one may be deprived of the right to enter the territory of the state of which he is a national".

The French government has adopted a "case-by-case" policy on the returning children of jihadists. Since March, only five orphans and a 3-year-old girl whose mother was sentenced to life in prison in Iraq have been repatriated. On April 23, the Council of State rejected several requests to compel the government to repatriate its nationals, saying that the matter was one of French diplomacy and therefore outside of its jurisdiction.

In an interview with FRANCE 24, one of the grandparents’ lawyers, Marie Dosé, said that, "when we make a child pay for the choices of his parents, we are going beyond injustice". She addressed both the humanitarian concerns and issues relating to security.

FRANCE 24: Why did you and your colleagues decide to take your case to the European Court of Human Rights?

Marie Dosé: This approach aims to push the state to assume its responsibilities because we are confronting inaction; more precisely, an irresponsible and particularly inhumane inertia. France's decision is what is called an "act of government"  that is to say, it is not subject to appeal before national administrative courts, so we can only challenge it at the international and European levels.

The French detainees in Syrian Kurdistan remain under the jurisdiction of the [French] state, since the decision not to repatriate them is a political choice that has legal repercussions on their situation outside national territory.

In addition … France is violating another provision of the European Convention [on Human Rights] … according to which no one may be deprived of the right to enter a state of which he is a national. This right of nationals to have [guaranteed] access to their own countries is an absolute right recognised by Article 10 of the International Convention on the Rights of the Child. We are therefore looking at France’s flagrant violation of the provisions of the European Convention on Human Rights.

What is the situation of the children and their mother? What risks do they face in the Al-Hol camp in Syrian Kurdistan?

Marie Dosé: Like their mother, they came out of Baghouz emaciated and sick, and one of the children had been wounded by shrapnel. This is very often the case for those who arrived at the Al-Hol camp in March. In my office, we are dealing with the cases of eight orphans held in this camp, six of whom were wounded in Baghouz during the bombings. When these children arrive at Al-Hol they fall prey to cholera, tuberculosis and dysentery, and grow even weaker. That should be enough for France to decide to repatriate them to save them, but it is not.

The government claims that these mothers are holding their children hostage. How dreadful; that means that we will let these children die in the camps because of their mothers’ decisions … I currently represent about 20 families, and I am dealing with 60 children. None of these women has been asked by French authorities about being repatriated with or without her children. Not one.

These mothers are not subject to a judicial system in Syrian Kurdistan; that’s not possible because it is not a state. The Kurds can’t keep them anymore. What do you want us to do? To leave them there? Why? To perpetuate the ideology of the Islamic State group and to leave them where the attacks were fomented and continue to feed these lands with a terrorism that will make its way to us?

This inertia is delusional, and I do not speak only from a humanitarian point of view I also speak from a security point of view. Some women say, "You will not take my child, I will stay here and continue." But we have to repatriate them and save those children from their mothers, as we would if they were on our soil. How can we think that by leaving them there, they will not be a danger for us, and that to do what [the mothers] want is to ensure our safety? I am not saying that they are not dangerous on the contrary, it is because some are that we must repatriate everyone and have them legally answer for their actions.

Those who oppose repatriation say they represent the majority of the French. What do you say to them? And what do you think of the government's so-called case-by-case policy?

Marie Dosé: When people are told that these children three-quarters of whom are under 6 years old are time bombs, it is obvious that no one would want them to return to France. But … if we leave them there they will certainly become time bombs, because that is what some mothers and terrorist groups want. It will then be very easy for these people to tell the children that France abandoned them.

What is the basis of the case-by-case approach advocated by the government? Why save one and not the other? Of the eight orphans we’re dealing with in my office, which ones will we take, and what is the criteria?

Do you think you have a chance to win your case in the international courts?

Marie Dosé: I cannot believe that we are in a country that refuses to save its children, that abandons them with impunity to sickness and death, that we are in a country that refuses to repatriate a child who has not asked to be born or to be taken [to Syria] ... I am a lawyer, I do everything I can to try to save these children and I do not want to have their deaths on my conscience.

I cannot stand injustice so I use the legal system to act. When we make a child pay for the choices of his parents, we are going beyond injustice.

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